A pair of related things is a coincidence: three is an article
A couple of things have been simmering for a while on the back burner here at Obama Conspiracy Theories. One of them is an occasional email exchange with Jerry Collette creator of the Do It Yourself Ballot Challenge Kit and pro se plaintiff in Collette v. Obama. Jerry took me to task for not covering all of the causes of action in his Florida suit (my article: “The shotgun birther challenge”). Jerry wrote, and I’m confident he won’t mind me sharing this:
So, maybe a follow up on the complaint article:
- negligence per se
- standing in FL
The other nagging issue was a quote of the day I used a while back:
I am a natural born citizen of the United States, am at least thirty-five years of age, and have been a resident of the United States at least fourteen years.
– Barack Obama
– Sworn statement (2007)
I recently needed to use that to contradict what a birther said (that Obama had never …) and I couldn’t find where it came from. I could remember seeing it, but not where. I looked high and low for days and just could not find it. Fortunately, a commenter here, Jamese777, serendipitously mentioned it and provided a link. Whose name appears on that nomination form? Don Bivens, Arizona campaign chair for Barack Obama.
Now today another commenter provided a link to the Motion to Dismiss in the DC case of Montgomery Blair Sibley. What is in that document?
… this case largely embodies the same set of allegations [as other dismissed challenges of Obama’s eligibility], with the exception of the inclusion of a separate and apparently unrelated Bivens claim against the United States Marshals Service and two Deputy U.S. Marshal John Doe defendants.
Eric J. Soskin
I’ll leave Don Bivens to his own devices. This article is about the Bivens claim in Collette.
The Wikipedia has a short article on the case of Bivens v. Six Unknown Named Agents. In short, the Supreme Court in Bivens recognized that an important individual right could be violated and that the only conventional relief might be injunctive (the court orders that the defendant stop violating the plaintiffs’ rights) and injunctive relief is against future actions and doesn’t redress past actions. The Court said that an implied remedy must exist for an important rights violation even though there’s no statute.
In the Sibley case, the “Bivens claim” really has nothing to do with Obama’s eligibility, so I won’t mention it further. Mr. Collette, however, makes it a central part of his strategy in the Ballot Challenge Kit. From the Kit:
Under the Bivens theory, when no specific remedy exists for the violation of the rights at issue, the existence of a remedy for the violation is implied from the importance of the right violated. It’s pretty hard to get something much more important than having a president of the United States who does not meet the constitutional requirements for office.
Bivens is a federal case and a federal theory. However, there is no reason that the same concept cannot be advanced, without calling it Bivens, in state court.
This theory fits particularly well with Fla. Const. art. I, § 21. Even in other states that may not have such a provision in their state constitutions, some judges are going to glom onto this concept and agree with us. It’ll only take one courageous judge, somewhere, anywhere, to make a difference.
I am not a lawyer, but I see two fundamental issues in pursuing such a claim. In Collette’s own lawsuit in Florida, he applies Bivens by saying (selected from several similar statements, internal numbering omitted):
The reelection of defendant Obama to the office of President of the United States, for another term, while he fails to meet the Eligibility Requirements, would further deprive plaintiff of his right to not be governed by office holders who do not meet the Eligibility Requirements.
The plaintiff is entitled to relief from violations of such right, past, current, and anticipated. No specific causes of action or remedies exist for violations of the right at issue. Accordingly, the existence of remedies for the violations is implied from the importance of the right violated.
First, Collette never cites any constitutional provision or statute that gives him the right “not be governed by office holders who do not meet the Eligibility Requirements.” Collette elsewhere says this right is “by implication” from the Constitution’s Eligibility Clause. However, this is a very broad implication, and it’s certainly not any enumerated right in the Constitution. I would expect a lawyer making a novel claim such as this to try to find come analogous court ruling where a right was created from a similar Constitutional provision. (Collette mentions Roe v. Wade in comments, but that would seem to be a much more fundamental right than presidential eligibility.) Certainly the court is not going to try to invent an argument on the plaintiff’s behalf when the plaintiff doesn’t make it himself. I learned long ago that “it’s obvious” doesn’t get very far.
A second problem is that to invoke Bivens, it would seem to be necessary to demonstrate that there is no other remedy. While it is a blunt sword, one remedy would be to petition Congress not to certify the election of a re-elected Obama under the “failure to qualify” language of the 20th Amendment.
Creating a way for the court to redress an injury is just one leg of the standing question, but what about the injury itself?
Standing is the reef that sank many an anti-Obama lawsuit. Collette cites the Florida Constitution:
Does this say that everybody has standing for everything?
I came across a fairly important case in Florida, Wexler v. Lepore, 878 So. 2d 1276 (Fla. 4th DCA 2004)1. I find it cited in other cases on standing. It’s an interesting case in that a Florida election official is the defendant. The issue is whether or not Florida can use touch-screen voting machines that do not create a paper record. Plaintiff (and Congressman) Wexler argued that Florida law required a recount in some situations, and that a touch-screen voting machine cannot be recounted. When the case reached the Florida 4th District Court of Appeals the issue of standing was addressed. The court said:
Whether a party has standing to bring an action is a question of law to be reviewed de novo. See Alachua County v. Scharps, 855 So.2d 195, 198 (Fla. 1st DCA 2003). In conducting the review, this court accepts the allegations in the complaint as true. See Hospice of Palm Beach County, Inc. v. State, Agency for Healthcare Admin., 876 So.2d 4 (Fla. 1st DCA 2004). The party must allege that he has suffered or will suffer a special injury. See Scharps, 855 So.2d at 198. Thus, the court must determine whether the plaintiff has a sufficient interest at stake in the controversy which will be affected by the outcome of the litigation. See id.
Both Secretary Hood and Supervisor Lepore argue that because Congressman Wexler faces no opposition in the upcoming election, he has been effectively re-elected, and has no standing as a candidate. We reject that argument. We hold that Congressman Wexler has standing to bring this action in his capacity as a candidate seeking re-election.
We agree with Judge Kroll’s analysis of this issue:
A party has standing when he has a sufficient stake in a justiciable controversy. To establish standing a party must have an injury in fact for which relief is likely to redress and, in non-constitutional cases, the interest must fall within a statutory or constitutional guarantee (i.e. the zone of interest). Peregood v. Cosmides, 663 So.2d 665 (Fla. 5th DCA 1995).
In Peregood v. Cosmides, 663 So.2d 665 (Fla. 5th DCA 1995) the court also said:
The injury must be distinct and palpable. See Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 2206, 45 L.Ed.2d 343 (1975). It may not be abstract, conjectural or hypothetical. Allen v. Wright, 468 U.S. 737, 741, 104 S.Ct. 3315, 3319, 82 L.Ed.2d 556 (1984).
Does any state court (or federal for that matter) have the right to rule on the eligibility of any candidate for President, or is exclusively the prerogative of the Congress? Is the redress of Mr. Collette’s complaint properly addressed through a petition to Congress?
Perhaps one day, I’ll look into “negligence per se.” Still, I think that Mr. Collette’s case is
1It appears that this case was heard separately in federal and state court. Here is the 11th Circuit Opinion. I am only looking at the state case.